NSHR raises concern over judicial appointments

THE National Society for Human Rights has called for greater transparency in the process through which judicial appointments are made in Namibia.

In a lengthy press statement on Thursday, the human rights organisation expressed concern over the independence of Namibia’s judiciary, the doctrine of the separation of powers – between the executive, legislative and judicial arms of the State – and the maintenance of the rule of law in the country. The NSHR charged that the Executive has over the years successfully managed to “insidiously and systematically” rid Namibia of an independent judicial system through “a triangular strategy”:public pressure, including systematic verbal attacks, the passage of “crippling and incursive legislation”, and the maintenance of a system where judicial officers were appointed in an acting capacity, in which they would not have the security offered by permanent appointments.Some of the organisation’s most pointed remarks were directed at the workings of the Judicial Service Commission (JSC), and the practice that has developed with the appointment of Judges and other judicial officers.Those remarks mostly focused on the lack of public information about the way the JSC performs its work – which is to recommend the appointment of acting or permanently-appointed Judges, the Prosecutor General and the Ombudsman to the President, who has to carry out the actual appointment.Unlike the practice in South Africa, for example, Namibia’s JSC does not hold public interviews of prospective judicial appointees.Instead, it holds closed meetings, with its recommendations also not revealed publicly until after the President had actually made a new judicial appointment.The NSHR used the recent appointment of Judges Petrus Damaseb and Kato van Niekerk to the High Court as examples to back up its complaints.While appearing to be at pains to state that it did not question the personal integrity and moral character of either of the two new Judges, the organisation remarked that in the public perception at least the appointment of both could be seen as having resulted from political ties or sympathies to the ruling party, Swapo.In this regard, the organisation referred to Judge Damaseb’s years of service as a senior Government official – these included serving as Permanent Secretary in the Office of the Prime Minister, Secretary to the President and Cabinet Secretary – and his recent role as returning officer at the Swapo extraordinary congress where the party’s candidate for the 2004 presidential election was chosen.With regard to Judge van Niekerk, the NSHR claimed, her ruling in favour of Swapo in a recent High Court challenge to the post-election replacing of the ruling party’s candidates for the Ongwediva local authority council, has created a perception among some that she was a Judge that was “on our side” – that is, the ruling party’s side.”For the sake of judicial independence and integrity in the interest of the administration of justice, judicial officers must not only be independent, but they must necessarily also be perceived or seen to be as such by especially the potential victims or aggrieved citizens,” the NSHR commented.On this score, the way that the JSC does its work could make much more of a contribution, the organisation indicated.It argued that, as in other democratic countries, a participative and transparent process had to be followed in appointing judges and other judicial officers:”There should be public hearings at which interested parties can make submissions, or candidates should at least be interviewed in a forum that is open to the public.(…) Do all Namibians not have an interest in judicial appointments, the rule of law and the administration of justice?”.The NSHR charged that the Executive has over the years successfully managed to “insidiously and systematically” rid Namibia of an independent judicial system through “a triangular strategy”:public pressure, including systematic verbal attacks, the passage of “crippling and incursive legislation”, and the maintenance of a system where judicial officers were appointed in an acting capacity, in which they would not have the security offered by permanent appointments.Some of the organisation’s most pointed remarks were directed at the workings of the Judicial Service Commission (JSC), and the practice that has developed with the appointment of Judges and other judicial officers.Those remarks mostly focused on the lack of public information about the way the JSC performs its work – which is to recommend the appointment of acting or permanently-appointed Judges, the Prosecutor General and the Ombudsman to the President, who has to carry out the actual appointment.Unlike the practice in South Africa, for example, Namibia’s JSC does not hold public interviews of prospective judicial appointees.Instead, it holds closed meetings, with its recommendations also not revealed publicly until after the President had actually made a new judicial appointment.The NSHR used the recent appointment of Judges Petrus Damaseb and Kato van Niekerk to the High Court as examples to back up its complaints.While appearing to be at pains to state that it did not question the personal integrity and moral character of either of the two new Judges, the organisation remarked that in the public perception at least the appointment of both could be seen as having resulted from political ties or sympathies to the ruling party, Swapo.In this regard, the organisation referred to Judge Damaseb’s years of service as a senior Government official – these included serving as Permanent Secretary in the Office of the Prime Minister, Secretary to the President and Cabinet Secretary – and his recent role as returning officer at the Swapo extraordinary congress where the party’s candidate for the 2004 presidential election was chosen.With regard to Judge van Niekerk, the NSHR claimed, her ruling in favour of Swapo in a recent High Court challenge to the post-election replacing of the ruling party’s candidates for the Ongwediva local authority council, has created a perception among some that she was a Judge that was “on our side” – that is, the ruling party’s side.”For the sake of judicial independence and integrity in the interest of the administration of justice, judicial officers must not only be independent, but they must necessarily also be perceived or seen to be as such by especially the potential victims or aggrieved citizens,” the NSHR commented.On this score, the way that the JSC does its work could make much more of a contribution, the organisation indicated.It argued that, as in other democratic countries, a participative and transparent process had to be followed in appointing judges and other judicial officers:”There should be public hearings at which interested parties can make submissions, or candidates should at least be interviewed in a forum that is open to the public.(…) Do all Namibians not have an interest in judicial appointments, the rule of law and the administration of justice?”.